Reilly v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 66 /99 HELD AT WELLINGTON Appeal No. DCA 283/98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN: PATRICK NOEL REILLY Appellant AND: ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the Act Respondent Heard at Wellington on the 10th day of December 1998 Date of Decision: 17 March 1999 Counsel: S Hughes for appellant B A Corkill for respondent - 2 - DECISION OF JUDGE P F BARBER The Issue: I am asked to determine whether the Review Officer in a decision of 28 April 1998 was correct in declining to award the appellant $8, 125.00 for consultation costs with his GP (a Doctor R Vasan), to obtain prescriptions of Temgesic, said to have occurred between February 1986 and July 1988. The Essential Facts and Chronology: The appellant injured his right arm in 1972. There was no ACC cover for that injury because it occurred before the Accident Compensation Act 1972 took effect. Presumably, the 1972 accident made the elbow susceptible to further injury. The appellant first had difficulties with the elbow in the Winter of 1982. The elbow problem became more persistent, and he seems to have first sought medical advice for it from Dr Vasan in January or February 1984. He was prescribed Temgesic for the pain until about September 1984, when he was prescribed an anti-inflammatory until March 1985. Since the anti-inflammatory did not relieve the pain, Dr Vasan referred the appellant to two specialists, Drs Tweed and Free. I note the appellant told the Review Officer in March 1997 that he did not realise it at the time, but he suffered withdrawal symptoms from Temgesic for two or three weeks from September 1984. One of the exhibits is a letter to Dr Vasan from Dr Tweed of 4 March 1985 referring to the elbow injury and noting that it responds well only to Temgesic. But Dr Tweed cautions against the use of Temgesic. In any case, over the period February 1986 to March 1988, it seems that the appellant attended Dr Vasan many times to obtain prescriptions for Temgesic on the basis of four tablets per day. At this stage, there seems - 3 - to be no dispute between the parties that over that period an addiction to Temgesic developed. The said figure of $8,125.00 seems to be a conservative figure worked out on the basis of five such visits every four weeks from March 1986 to August 1988. It is said to be a conservative figure, but I understand that for a useful period the appellant was receiving anti-inflammatories rather than Temgesic. Medical cards were produced to me as being those of Dr Vasan over the material times. The notes on these cards are not particularly legible or comprehensible, but could well indicate regular visits by the appellant to Dr Vasan for Temgesic prescriptions. I am told that the appellant made a point of paying for these consultations by cheque but does not have any bank records at this stage. There are no receipts, nor bank records, nor any documentation supporting the quantum of the payment claimed The Three Previous Decisions of Review Officers: The above decisions are relevant to the present claim but need only be referred to briefly. In a decision of 16 June 1992, Mr M S Gilkison, Review Officer, in a clear and succinct decision, held that the appellant does have cover from the Corporation in respect of his right elbow condition under the Accident Compensation Act 1982. He found that the incapacity commenced in January 1989 from his work as a Seaman on the Aranui. I note that Mr Gilkison stated: "I make no decision on the part that the prescription and the taking of Temgesic played in the commencement of incapacity. Likewise, I make no decision on whether the prescription of Temgesic, and the later addiction to Temgesic, were physical (or mental) consequences of the elbow condition." Then there was the decision of 21 May 1997 from the Review Officer Mr Ken Howell. That was to review a decision of the respondent declining cover for medical misadventure. In a detailed decision Mr Howell found that, on the balance of probabilities, Dr Vasan was negligent in prescribing Temgesic to the appellant between 1986 and - 4 - 1988, and that this amounted to medical misadventure with the appellant's dependency being the injury. Accordingly, the appellant succeeded in his claim for cover as a medical misadventure. It seemed to me that Mr Howell was referring to a drug dependency as at August 1988 and that he could not be "certain" that the addiction commenced earlier. Finally there is the 28 April 1998 decision of the Review Officer, Ms J C Kermode (the subject of the present appeal) confirming the respondent's decision of 17 October 1997 declining to pay the said consultation fees of $8,125.00. That is also a clear and reasoned decision concluding as follows: "The applicant has had a claim accepted under Section 2 of the 1982 Act in respect of medical misadventure. The personal injury that has been accepted is drug dependency and was accepted on the basis that the temgesic prescribed by Dr Vasan in the period 1986 to 1988 caused the personal injury. . This is the period the applicant is seeking consultation costs totalling $8125. Section 27 of the 1992 Act provides for the Corporation to contribute to the cost of the treatment in respect of the "personal injury that is covered by this Act". Section 75 of the 1982 Act provided in a similar manner. It is my view that the treatment the applicant is wanting to be paid for by the Corporation is not treatment in respect of the "personal injury" for which he has cover. Rather, those consultations and the prescribing at those consultations are the ones that the applicant claims caused the "personal injury" and which has now been accepted as personal injury. I am therefore not satisfied that the medical costs Mr Reilly is seeking are costs incurred in the treatment of a "personal injury". In any event, if that view was not supported, I am not satisfied that the applicant has provided satisfactory evidence that he incurred the costs he is seeking and what treatment was involved. It is my view that the onus is on the applicant to provide satisfactory evidence and it is my view that this has not been provided. It follows that I will not be altering the outcome of the Corporation's decision." The Relevant Law: It is now accepted between the parties and their counsel that's 75 of the Accident Compensation Act 1982 applies to this particular case. Essentially, that section in some detail, and with many qualifications, 5 - requires the Corporation to pay the costs of "treatment" where a person has suffered personal injury by accident in respect of which he has cover. Reasons for Decision: An overall consideration of the evidence and submissions leads me to firmly conclude that any such medical consultations now in issue (as incurred over February 1986 to July 1988) cannot be related to the 1989 cover in respect of the elbow condition and subsequently accepted as a medical misadventure claim in May 1997 for the drug dependency arising from elbow treatment. This is because those consultations a prescriptions related to a right elbow injury which occurred in 1972 (but not found to be an incapacity until as at January 1989) and the consultations and prescriptions of Temgesic did not relate to treatment of drug dependence, but were as treatment for the right arm injury. In fact, they must have caused the drug dependence. I cannot improve on the reasoning of the Review Officer, Ms J C Kermode, set out above. I noted above that the appellant was granted cover in June 1992 regarding the right elbow injury on the basis that incapacity regarding it commenced in January 1989. My above essential finding means that I do not need to consider the quantum aspect. Certainly, the evidence as to quantum is a little vague, but it does appear (on the balance of probability) that the appellant attended Dr Vasan many times between 1986 and 1988 to be prescribed Temgesic. This is supported by the cards exhibited which seem to emanate from Dr Vasan. The quantum of the claim must be at least substantially correct. Despite my above firm finding, I now deal with the salient submissions from each counsel. In terms of the submissions of Mr Hughes in the sequence presented, I appreciate that it is of concern that, by letter date 17 October 1997, the respondent's stance was that if Dr Vasan was charging the appellant and also charging the respondent, then the respondent "cannot pay twice"; and yet, apparently, at that time the case manager was aware that there - 6 - had been no double charging. However, that point is not relevant to the issues before me. I certainly agree with Mr Hughes that if personal injury by accident is accepted, which it has been by the Review decision of 21 May 1997 finding medical misadventure, then the appropriate costs of treatment should be payable. However the appellant's expenditure now in question was not treatment for that personal injury. That cover related to a medical misadventure with the appellant's dependency being the injury arising from the prescribing of Temgesic between 1986 and 1988. The prescription of that Temgesic cannot be regarded as treatment, because that prescription is the very medical misadventure which has led to the injury. It is a cause of the injury and not a treatment of the injury as was clearly stated by Ms Kermode in her decision of 28 April 1998. Obviously, the question is: why was the appellant prescribed the Temgesic between 1986 and 1988?. The answer is that he needed treatment by 1986 due to his work as a seaman aggravating a 1972 accident injury. However, incapacity did not commence until 1989 and the 1986 to 1988 treatment led to a drug dependence which was later (May 1997) accepted as medical misadventure commencing sometime after July 1988. Mr Hughes referred to Ms Kermode's decision that the medical consultations and subsequent prescribing over 1986-1988 caused the personal injury by accident, and were not treatment for it. Mr Hughes then submits that this is not supported by medical evidence, and that Ms Kermode's finding directly contradicts Mr Howell's findings of 21 May 1997, which accepted the addiction at that time. However, even if the addiction existed in, say, February 1986 or shortly thereafter, the Temgesic was not being prescribed for that addiction but for the elbow injury. In any case, as I mention above, Mr Howell found drug addiction as at August 1988. I can understand the proposition by Mr Hughes that if the appellant was suffering withdrawal symptoms from Temgesic by the end of 1984, he must have been addicted to it by then. Nevertheless, he was not consulting Dr Vasan or receiving Temgesic prescriptions after that because of an addiction, but as treatment for his right elbow. In any case the overall evidence does not disclose addiction prior to August 1988. In reference to the quantum claim, I have already indicated that, but for my finding that there has been no treatment for the medical misadventure claim in question in terms of the Temgesic consultations between 1986 and 1988, then quantum could have been substantially accepted, on the balance of probability, because there is relevant evidence from the appellant and from the said cards of a medical practitioner. The type of treatments claimed by the appellant to have taken place for him from Dr Vasan, over 1986 to 1988, must have taken place at about the cost he refers to, and the existing evidence about that has not really been challenged. However, this hearing has focussed on whether those consultations were treatment for the medical misadventure cover, - of which they are the cause, not the treatment. Cover for the right elbow injury was granted on 16 June 1992 under s 28 of the 1982 Act, on the basis that incapacity for that elbow injury commenced in January 1989. This means that the treatment costs from 1986 to 1988 were before the period of cover. The appellant has brought this case seeking to recoup those treatment costs under the medical misadventure claim accepted by the Review Officer on 21 May 1997. However, for the reasons I have explained, they do not fit under that claim (as being its cause, not its treatment) and were incurred prior to the previous claim cover date. In short, the problem is that for 1986 to January 1989 there was no ACC cover, so that elbow treatment costs cannot be met. Mr Hughes maintains that the respondent and the Review Officers have been illogical. However, I think it has been illogical and confusing of counsel to have been flitting between the two types of injury, - i.e. injury to the right elbow and an addiction to Temgesic, when arguing for reimbursement of Dr Vasan's consultation fees. As Mr Corkill submits, the medical costs in question were not incurred in the treatment of a personal injury for a time when cover was available. That treatment caused the personal injury of drug addiction now in issue, so that the cost of that treatment was not related to treating drug - 8 addiction. Temgesic was prescribed for the original 1972 injury to the appellant's right arm. It was not prescribed for the drug addiction which, indeed, it must have caused. The personal injury by accident, which was the subject of the medical misadventure finding in 1997, was the addiction that arose from continued prescription of Temgesic over 1986 to 1988. The ongoing prescribing over that period of Temgesic was not a response to the fact that the appellant was addicted to Temgesic (the cause of the medical misadventure), but because Dr Vasan was attempting to treat a 1972 injury for which there was no ACC cover. It follows that the ongoing prescription of Temgesic over 1986 to 1988 was not a treatment expense flowing from the medical misadventure itself, but was a treatment expense with regard to a 1972 injury for which there was no ACC cover. The focus of the case before me must be on reconsidering what the Review Officer (Ms Kermode) found. I agree with her. I can understand the concern of the appellant and his counsel that the appellant became addicted to Temgesic over 1986 to 1988 (and, possibly, by quite early in 1986), apparently due to medical incompetence and, quite possibly, due to the medical practitioner being also dishonest. However, Mr Corkill is, of course, correct in remarking that the respondent is not a fidelity fund for dishonest medical practitioners. The respondent may only pay claims for (in this case) treatment for a personal injury by accident which is covered by the Act or its predecessors. I have explained that such cover happens to be not available on the particular facts of this case, so that this appeal fails. The treatment in issue is not related to personal injury by accident for which the appellant has been accorded cover. I respectfully remark that the irritation of the appellant should be directed to Dr Vasan and not to the respondent corporation. Accordingly, this appeal is dismissed. (P F Barber) District Court Judge